Biden Administration Moves to Protect Obama-Era Deferred Action for Childhood Arrivals Program

Secretary of Homeland Security Alejandro Mayorkas testifies before a Senate panel in the Dirksen Senate Office Building in Washington on Sept. 21, 2021. Jim Lo Scalzo/Pool/Getty Images

President Joe Biden’s administration unveiled on Sept. 27 a new rule aimed to protect an Obama-era program that has shielded more than 600,000 illegal immigrants brought to the United States as children.

The proposed rule (pdf) would “preserve and fortify” the Deferred Action for Childhood Arrivals program, or DACA, in an attempt to respond to a court ruling that the program was illegally created.

Then-President Barack Obama ordered the deferred action policy through an executive order, but Congress never provided the executive branch with the authority to allow illegal immigrants to stay in the country, U.S. District Judge Andrew Hanen, a George W. Bush appointee, ruled in July.

Hanen halted the acceptance of any new applications made under the program and remanded to the Department of Homeland Security (DHS) the memorandum that actually established the program for further consideration. That memo, filed in 2012 by then-Attorney General Janet Napolitano didn’t follow proper notice and comment rulemaking, which violated federal law, according to the judge.

The new DHS proposal, set to be published on Sept. 28, is a response to the ruling. It includes many of the same provisions as Napolitano’s memo, including eligibility requirements such as living continuously in the United States since June 15, 2007.

It would also make additions to the program—among them, letting applicants apply for deferred action from deportation without submitting forms for employment authorization.

People will have 60 days from Sept. 28 to comment on the proposed rule.

“The Biden-Harris administration continues to take action to protect dreamers and recognize their contributions to this country,” DHS Secretary Alejandro Mayorkas said in a statement. “This notice of proposed rulemaking is an important step to achieve that goal. However, only Congress can provide permanent protection. I support the inclusion of immigration reform in the reconciliation bill and urge Congress to act swiftly to provide dreamers the legal status they need and deserve.”

Immigration activists refer to the illegal immigrants who are DACA recipients as dreamers.

In response to the rule, NumbersUSA, a group that seeks to educate policymakers and other Americans on immigration legislation and policies and pushes for lower immigration levels, wrote on Twitter, “DACA is illegal and unconstitutional.”

Congress has considered but failed to pass legislation for years that would address the approximately 616,030 DACA recipients in the country. Democrats wanted to include a pathway to citizenship in their budget, which they’re seeking to approve by using a reconciliation process, but the Senate’s top rules expert said last week that the immigration policy couldn’t be part of the process.